EXHIBIT II

ENFORCEMENT AGREEMENTS WITH STATES

1. Statutory Authority. Section 311(a) of the FCMA authorizes the Secretaries of Transportation and Commerce, by agreement, to use the personnel, services, equipment, and facilities of any state agency in enforcing the FCMA. The Secretary of Transportation has delegated this authority to the Commandant. Within the Department of Commerce, the authority has been delegated to the various regional directors of the National Marine Fisheries Service. The Act does not require the use of state resources; nor does it prescribe any specific conditions which must exist before they are used.

2.

Discussion. The authority to use state resources in fisheries enforcement is not new. Other fisheries legislation, including the FCMA's predecessor, the Barlett Act, contain similar authorization. The Coast Guard, primarily because its enforcement activities have been directed almost exclusively at foreign vessels, has not found it necessary or desirable to implement these state-enforcement provisions. The National Marine Fisheries Service, in its domestic enforcement programs, has done so in a number of instances with beneficial results. For example, NMFS has agreements with several states for the purpose of enforcing the Marine Mammal Protection Act, the Endangered Species Act, the Atlantic Tunas Act and the Sockeye or Pink Salmon Act as they apply to domestic fishermen.

a. Parties to Agreement. There is some question as to whether, as a matter of law, both the Coast Guard and NMFS must be parties to enforcement agreements with states. However, since enforcement of the FCMA is a joint responsibility, both agencies have agreed that, as a matter of policy, any such agreements will require the concurrence of both agencies.

b.

Purpose and Usefulness of Agreement. The purpose of entering into an FCMA enforcement agreement with a state is to enhance fishery conservation and management as a whole. In general, state resources made available for FCMA enforcement will serve to supplement the federal (Coast Guard and NMFS) resources used for that task. They should be used whenever their use would enhance the overall fishery conservation and management effort.

(1) The benefits to be derived from the use of state resources will vary depending upon various factors such as the type of regulations to be enforced, the type of state resources available and the availability of federal resources. It is the benefit to fishery conservation and management, not just to the Coast Guard's enforcement program, which is to be considered. In this regard, cross-deputization (i.e., state authorization for NMFS agents to enforce state laws and federal authorization for state agents to enforce federal laws) enhances fishery conservation and management by substantially increasing the manpower pool available for enforcement. Therefore, inclusion of cross-deputization provisions in agreements is encouraged.

2.b.

(2) Because of the special operational and interagency coordination requirements involved, it is not practicable, in the absence of special circumstances (such as those present in the cases of Florida and Texas), to use state resources to enforce the FCMA against foreign vessels.

Normally, the

c. Funding of state activities and resources. nonmonetary benefits which accrue to the state under the agreement will be sufficient compensation for their activities. If, however, the state activities under the agreement are the most cost-effective way to attain optimum FCMA enforcement, federal reimbursement (for those state activities which go beyond their normal fishery enforcement duties and/or for additional resources necessary to perform those activities) may be considered, if deemed necessary and appropriate (see attached flow chart).

3. Policy. The Coast Guard and the National Marine Fisheries Service, in consultation with the state concerned, will assess the usefulness of using state resources in enforcing the FCMA. If the assessment discloses that the use of state resources would enhance fishery conservation and management objectives, the Coast Guard, jointly with NMFS, will seek to negotiate an appropriate enforcement agreement with the state concerned. The relationship established by the agreement, as well as its specific provisions, should provide an impetus for the development of an integrated federal/state approach to fisheries conservation and management, including coordination of state and federal enforcement activities.

a. In general, the FCMA enforcement activities of the state under such agreements will: (i) be limited to domestic fishing vessels; and (ii) take place within state waters and the FCZ adjacent to the state.

b. Such agreements should include a commitment by the state, in managing its fisheries, to adopt conservation, management and enforcement measures and regulations which complement the federal measures adopted under the FCMA for fisheries in the FCZ adjacent to the state.

4. Procedures. On his own initiative, or at the request of an appropriate NMFS or state official, the commander who represents the Coast Guard on the Regional Fishery Management Council which has cognizance over fisheries off a state (Commander, Seventh District for Florida), in conjunction with the appropriate NMFS regional director, shall:

a. Using the guidelines set forth above and the attached flow chart, assess the advisability of entering into an FCMA enforcement agreement with a state;

4. b. If advisable, develop an agreement with the state which sets forth: (i) the type and amount of activity to be performed by the state; (ii) the state agency which will perform the activities; (iii) the federal character of the activity; (iv) the relationship of the state agency/agents to the Coast Guard and NMFS while performing the activities; (v) administrative reporting requirements; (vi) a termination clause; and (vii) additional terms necessary to define the elationship agreed to.

c. After obtaining clearance from Commandant (G-0), execute and implement the agreement.

Hon. ROBERT L. LEGGETT,

DEPARTMENT OF TRANSPORTATION,

UNITED STATES COAST GUARD, Washington, D.C., August 15, 1978.

Chairman, Subcommittee on Fisheries and Wildlife Conservation and the Environment, U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: Pursuant to your request, this letter will serve to amplify the testimony of Captain R. H. Overton, Chief of the Ocean Operations Division, U.S. Coast Guard Headquarters, before the Subcommittee on June 13, 1978. Of specific interest was the extent of Coast Guard at sea boardings of domestic fishing vessels, violations of U.S. law or regulations found, and an analysis of such violations vis-a-vis in port and at sea enforcement actions.

As pointed out in the hearing, the Coast Guard is charged to enforce or assist in the enforcement of all applicable federal laws on and under the high seas and waters subject to the jurisdiction of the United States. Accordingly, our maritime law enforcement activities are undertaken at times and places (in port and at sea) appropriate to the situation and the provisions of the applicable law or regulation. With regard to the latter point, at sea enforcement may be required in order to establish federal jurisdiction and/or the elements of an offense (e.g., illegal fishing operations within the fishery conservation zone vice the territorial waters under state jurisdiction; provisions of law or regulations which apply only when a vessel is under way, such as navigation rules for international and inland waters). Additionally, in view of the variety of federal regulations to be enforced, it is our general practice to inspect a vessel for compliance whenever we are on board. In this context, the boarding of a domestic fishing vessel pursuant to the Fishery Conservation and Management Act (FCMA) or other fisheries law may also include enforcement actions associated with maritime safety, pollution and vessel documentation rules. For example, the 241 domestic FCMA enforcement boardings conducted at sea in May 1978 involved 217 fishing vessels, of which eight were found to be in violation of fisheries related regulations and 31 in violation of maritime safety and/or vessel documentation rules. Of the 69 violations detected in this instance, all but nine (re vessel documentation) required at sea enforcement action inasmuch as the regulations involved govern the vessels' activity or status while underway. A revised Exhibit I-E to Captain Overton's prepared remarks to the Subcommittee is attached for the record. It should be noted, however, that the domestic fishing vessel violation profile reflected in the exhibit relate only to those vessels which were initially boarded for purposes of FCMA enforcement. The "other" violations were discovered incidental to the fisheries law enforcement activity. Not reflected in the exhibit are those Coast Guard boardings of U.S. vessels, including fishing vessels, which were undertaken for the purpose of enforcing non-fisheries related regulations.

The question of at sea/in port enforcement of the FCMA is a matter of great interest to the Coast Guard inasmuch as it has a direct impact on resource planning and scheduling. In the course of our preparations for implementing the FCMA (e.g., development of resource requirements, enforcement patrol standards and operating techniques), we assumed that our enforcement operations would be primarily associated with foreign fishing in the "active (historical) fishing areas" within the fishery conservation zone, and that the fishery management plans and regulations governing domestic fishing vessels would be written in such a manner as to be principally a dockside enforcement function. The latter point has not proved to be the case. The regulatory measures contained in the three existing fishery management plans (i.e., Atlantic Groundfish (Cod, Haddock and Yellowtail Flounder); Atlantic Surf Clam and Ocean Quahog; Commercial and Recreational Salmon Fisheries off the Coasts of Washington, Oregon and California) make at sea boardings a necessity if enforcement is to be meaningful. For example, the Pacific salmon fisheries plan includes the following regulatory measures:

(a) Time/subarea restrictions related to species of salmon;

(b) Minimum size restrictions related to subarea in which caught (i.e., 26′′ north of Cape Falcon, 28'' south);

(c) Time/subarea gear restrictions (e.g., barbless hooks, lures, bait);

(d) Gear restrictions related to recreational fishing (e.g., single pole line per person using a maximum of four single or multiple hooks).